2007 Regular Session
To: Public Health and Welfare
By: Senator(s) Fillingane, Hewes, Kirby, Albritton, Burton, Carmichael, Chaney, Clarke, Davis, Flowers, Jackson (15th), King, Lee (35th), Little, Morgan, Nunnelee, Pickering, Ross, Walley
AN ACT TO AMEND SECTION 41-41-55, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT IF A COURT GRANTS A WAIVER OF PARENTAL CONSENT TO A MINOR SEEKING AN ABORTION, THE COURT SHALL MAKE CERTAIN REQUIRED FINDINGS BY CLEAR AND CONVINCING EVIDENCE; TO PROHIBIT ABORTIONS IN THE STATE OF MISSISSIPPI, EXCEPT IN CASES WHERE NECESSARY FOR THE PRESERVATION OF THE MOTHER'S LIFE OR WHERE THE PREGNANCY WAS CAUSED BY RAPE; TO PROVIDE THAT THIS PROHIBITION SHALL BECOME EFFECTIVE ONLY UPON A DETERMINATION BY THE STATE ATTORNEY GENERAL THAT THE UNITED STATES SUPREME COURT HAS OVERRULED THE DECISION OF ROE V. WADE, WHICH HAS THE EFFECT OF HOLDING UNCONSTITUTIONAL ANY STATE LAW THAT SEEKS TO CREATE SUCH A PROHIBITION; TO REQUIRE THAT BEFORE THE PERFORMANCE OF AN ABORTION, THE PHYSICIAN SHALL PERFORM FETAL ULTRASOUND IMAGING AND AUSCULTATION OF FETAL HEART TONE SERVICES; TO REQUIRE THE PHYSICIAN TO OFFER THE PATIENT AN OPPORTUNITY TO VIEW THE ULTRASOUND IMAGE AND LISTEN TO THE HEARTBEAT OF THE UNBORN CHILD, IF THE HEARTBEAT IS AUDIBLE; TO REQUIRE THE PATIENT TO SIGN A CERTIFICATION FORM STATING THAT SHE HAS BEEN GIVEN THAT OPPORTUNITY; TO REQUIRE THE PHYSICIAN TO RETAIN A COPY OF THE SIGNED CERTIFICATION FORM IN THE PATIENT'S MEDICAL RECORD; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-41-55, Mississippi Code of 1972, is amended as follows:
41-41-55. (1) The requirements and procedures under Sections 41-41-51 through 41-41-63 shall apply and are available to minors whether or not they are residents of this state.
(2) The minor may participate in proceedings in the court on her own behalf. The court shall advise her that she has a right to court-appointed counsel and shall provide her with such counsel upon her request or if she is not already adequately represented.
(3) Court proceedings under this section shall be confidential and anonymous and shall be given such precedence over other pending matters as is necessary to insure that the court may reach a decision promptly, but in no case shall the court fail to rule within seventy-two (72) hours of the time the application is filed. If for any reason the court fails to rule within seventy-two (72) hours of the time the application is filed, the minor may proceed as if the consent requirement of Section 41-41-53 has been waived.
(4) Consent shall be waived if the court finds by clear and convincing evidence either:
(a) That the minor is mature and well-informed enough to make the abortion decision on her own; or
(b) That performance of the abortion would be in the best interests of the minor.
(5) A court that conducts proceedings under this section shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence be maintained.
(6) An expedited confidential and anonymous appeal shall be available to any minor to whom the court denies a waiver of consent. The Mississippi Supreme Court shall issue promptly such rules and regulations as are necessary to insure that proceedings under Sections 41-41-51 through 41-41-63 are handled in an expeditious, confidential and anonymous manner.
(7) No filing fees shall be required of any minor who avails herself of the procedures provided by this section.
SECTION 2. (1) As used in this section, the term "abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus.
(2) No abortion shall be performed or induced in the State of Mississippi, except in the case where necessary for the preservation of the mother's life or where the pregnancy was caused by rape.
(3) For the purposes of this act, rape shall be an exception to the prohibition for an abortion only if a formal charge of rape has been filed with an appropriate law enforcement official.
(4) Any person, except the pregnant woman, who purposefully, knowingly or recklessly performs or attempts to perform or induce an abortion in the State of Mississippi, except in the case where necessary for the preservation of the mother's life or where the pregnancy was caused by rape, upon conviction, shall be punished by imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than ten (10) years.
SECTION 3. The provisions of this section shall be codified as Section 41-41-34, Mississippi Code of 1972:
41-41-34. (1) Before the performance of an abortion, as defined in Section 2 of this act, the physician who is to perform the abortion, or a qualified person assisting the physician, shall:
(a) Perform fetal ultrasound imaging and auscultation of fetal heart tone services on the patient undergoing the abortion;
(b) Offer to provide the patient with an opportunity to view the active ultrasound image of the unborn child and hear the heartbeat of the unborn child if the heartbeat is audible;
(c) Offer to provide the patient with a physical picture of the ultrasound image of the unborn child;
(d) Obtain the patient's signature on a certification form stating that the patient has been given the opportunity to view the active ultrasound image and hear the heartbeat of the unborn child if the heartbeat is audible, and that she has been offered a physical picture of the ultrasound image; and
(e) Retain a copy of the signed certification form in the patient's medical record.
(2) The State Department of Health shall enforce the requirements of this section.
(3) An ultrasound image must be of a quality consistent with standard medical practice in the community, shall contain the dimensions of the unborn child and shall accurately portray the presence of external members and internal organs, if present or viewable, of the unborn child.
SECTION 4. At such time as the Attorney General of Mississippi determines that the United States Supreme Court has overruled the decision of Roe v. Wade, 410 U.S. 113 (1973), and that as a result, it is reasonably probable that Section 2 of this act would be upheld by the court as constitutional, the Attorney General shall publish his determination of that fact in the administrative bulletin published by the Secretary of State as provided in Section 25-43-2.101, Mississippi Code of 1972.
SECTION 5. (1) If any provision of this act is found to be unconstitutional, the provision is severable; and the other provisions of this act remain effective, except as provided in other sections of this act.
(2) Nothing in this act may be construed to repeal, by implication or otherwise, any provision not explicitly repealed.
(3) If any provision of this act is ever declared unconstitutional or its enforcement temporarily or permanently restricted or enjoined by judicial order, the provisions of Sections 41-41-31 through 41-41-91, Mississippi Code of 1972, shall be enforced. However, if such temporary or permanent restraining order or injunction is subsequently stayed or dissolved or such declaration vacated or any similar court order otherwise ceases to have effect, all provisions of this act that are not declared unconstitutional or whose enforcement is not restrained shall have full force and effect.
(4) Nothing in the provisions of Sections 41-41-31 through 41-41-91, Mississippi Code of 1972, shall be construed to permit any action that is prohibited by Senate Bill No. 2391, 2007 Regular Session, and to the extent that any provision of Sections 41-41-31 through 41-41-91, Mississippi Code of 1972, would be so construed, then the provisions of Senate Bill No. 2391, 2007 Regular Session, shall take precedence.
SECTION 6. Sections 1, 3, 4 and 5 of this act shall take effect from and after July 1, 2007. Section 2 of this act shall take effect and be in force from and after ten (10) days following the date of publication by the Attorney General of Mississippi in the administrative bulletin published by the Secretary of State as provided in Section 25-43-2.101, Mississippi Code of 1972, that the Attorney General has determined that the United States Supreme Court has overruled the decision of Roe v. Wade, 410 U.S. 113 (1973), and that it is reasonably probable that Section 2 of this act would be upheld by the court as constitutional.